Attorneys

There is a difference in most Canadian jurisdictions between marriages that are "void" and "voidable".

Void marriages have a flaw which renders them invalid from the beginning, no matter what the intentions of the parties may have been. Some examples of void marriages are:

• one spouse is already married;
• the parties are too closely related (see "prohibited degrees of affinity and consanguinity", above);
• mistaken identity of the partner.

Voidable marriages are those where there is or may be a flaw, but the marriage will be recognized as valid until someone commences annulment proceedings to a court for a declaration or ruling that the marriage is invalid. Some examples of voidable marriages are:

• one or both parties at the ceremony were so intoxicated that their consent could not have been given;
• one of the partners was threatened or coerced into the ceremony;
• one of the partners was a minor;
• the person who issued the licence or who solemnized the marriage contravened or failed to comply with the Marriage Act;
• one of the partners was misled as to the nature of the ceremony, such as by not understanding the language or lacking the mental capacity to understand;
• the marriage was not consummated by sexual intercourse, unless it can be shown that sexual intercourse between the parties took place prior to the marriage ceremony;
• the parties have not, after the ceremony, lived together as husband and wife.

Even if the person who solemnized the marriage or who issued the licence for the marriage contravened or failed to comply with the Marriage Act, the Court of Queen's Bench may declare the marriage valid.

If a marriage is neither void nor voidable, the only recourse is divorce.

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